It is surprising that a dispute as to the jurisdiction of the court in a claim for damages of $304 for the loss of 10 planks of timber should find its way through the Antwerp Court of Appeal and the Belgian Court of Cassation to the European Court of Justice in Luxembourg. Nevertheless, this was what happened in Partenreederei m.s. Tilly Russ v. Haven x Vervoerbedrijf Nova N.V.1 The facts were fairly straightforward. The plaintiffs, a Belgian company, bought a consignment of timber from an American firm. The defendants, a German shipping company, were instructed to ship the timber from Toronto to Antwerp. The shipment was covered by two bills of lading made out in the defendants’ name by their American agents. When the timber was delivered in Antwerp, some was missing and the plaintiffs, the holders of the bills of lading, claimed damages before the Antwerp courts.

The defendants objected to the jurisdiction of the Belgian courts, relying on a statement which appeared on the back of each bill of lading to the effect that “any dispute arising under this bill of lading shall be decided by the Hamburg courts”. Although the lower courts concluded that they had jurisdiction notwithstanding this provision2 (and found for the plaintiffs), the Belgian Court of Cassation concluded that the case raised issues as to the interpretation of Art. 17 of the 1968 EEC Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. Such issues had to be resolved by the European Court of Justice, to which was put the following question:

The European Court of Justice tackled the question in two parts, examining first the issue whether the jurisdiction clause in the bill of lading satisfied the requirements of Art. 17 in respect of the relationship between the American shipper and the German carrier. It should be noted at the outset that at issue is the interpretation of Art. 17 in the original 1968 Convention, and not as it was amended by the 1978 Convention of Accession by Denmark, Ireland and the United Kingdom. It is this latter version which appears in Sch. I to the Civil Jurisdiction and Judgments Act 1982.

In its original form, Art. 17 requires at least one of the parties to be domiciled in a Contracting State.3 That requirement was satisfied in relation to the contract of carriage, the shipper being German. It is then necessary that the agreement as to